Community Government for Minority Groups: Revisiting the Ideas of Bauer and Renner Towards Developing a Model of Self-Government by Minority Groups Under Public Law (original) (raw)
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The question of how to accommodate ethno-cultural diversity within liberal democratic states is one that has acquired a growing salience across Europe during the course of the past five decades. Political theory long adhered to the view that liberal democracy was something to be realised within the framework of a unitary nation-state based on a single undifferentiated political community of individuals. Although the civic/liberal vision of the nation was supposedly 'ethno-culturally neutral' , the classic nation-state model also carried an implicit presumption of cultural homogeneity, whereby a single official language and overarching societal culture formed the basis for meaningful participation by all in public life. 1 This model reflected the experience of western European states -most notably France -where 'relatively strong, centralized monarchies emerged in pre-modern times, constituting sturdy political-cultural molds within which state-wide national identities eventually gelled, under the impact of homogenizing forces such as economic development and commercial integration, the bureaucratization of the state, the growth of public education, and the development of print media, electoral politics and the mass media' . 2 This model of the culturally homogenous liberal democratic nation-state has, however, never been anything more than an ideal type, and its core assumptions have since the start of the twentieth century been challenged both theoretically and in practice by a more liberal pluralist vision which asserts the importance of public recognition and accommodation of ethno-cultural diversity within democratic societies. Advocates of liberal pluralism draw attention to the structural disadvantages faced by bearers of minority languages and cultures within the context of unitary nation states. Individual rights of non-discrimination, it is argued, cannot suffice to address these disadvantages. The notion of a single political community of equal citizens thus needs to be supplemented by the granting of additional specific national minority rights that can only be exercised collectively -for example, to cultural and educational facilities and to language use in the public sphere.
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National minorities and their status, rights and protection are among most sensible and disputed political issues all over Central and Eastern Europe (CEE). All eight analysed nation states constitutionally recognise national minorities and at least some group-specific minority rights. The list of constitutional group-specific minority rights varies, and it is longest in Serbia, Slovenia and Romania; however, national legislators in all states have wide discretion to regulate these constitutional rights and to determine their scope and content with laws. The constitutionally protected minorities are named only in Slovenia and Croatia, and constitutions only exceptionally make difference between minorities based on territoriality or numerical concentration. The jurisprudence of constitutional courts generally reveals no particular judicial activism in this area-with the exception of the Constitutional Court of Slovenia-and courts have usually failed to conceptualise minority rights and made no proper equilibrium between minority rights and constitutional provisions protecting and promoting the nation state and dominant position of the titular nation. Furthermore, in some states, the status of minorities is tacitly still more a state security issue and less a constitutional law question.
For members of ethno-cultural minorities, the right of political participation means more than the right to seek to influence the outcome of a process designed to aggregate individual preferences to find a decision acceptable to a majority of citizens. Effective participation of national minorities in public life requires specific arrangements to "facilitate the inclusion of minorities within the State and enable minorities to maintain their own identity and characteristics, thereby promoting the good governance and integrity of the State." 1 After an overview of the different approaches toward minorities and their political representation (which obviously determine the legal solutions adopted and consequently the judicial attitude), the paper deals with more specific rules on the political representation of minorities (such as participation at central, regional and local government level, special electoral rules, non-territorial arrangements, veto rights, consultative bodies, etc.) and their judicial interpretation in comparative analysis. In conclusion, the paper argues that the concrete recognition of effective rights of political participation by the courts depends on the set of values forming the basis of the constitutions. Any technical instruments for the implementation and guarantee of these rights can only be based on the political recognition of the representation and participation of minorities as a constitutionally legitimate aim (and value).
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Countries that are seeking to establish constitutional democracy after a history of dictatorial or oppressive government confront large challenges in creating stable structures of government and protecting the rights of their citizens. Many countries have the added challenge of considering how their culturally diverse character—which may be linguistic, religious, tribal, ethnic, or even “national” (if the more than one group within the country calls itself a nation)— should be reflected in their constitution and governmental arrangements. Minority groups may seek special arrangements to protect their basic human rights as well as constitutional provisions providing specific rights to protect their cultural identities, to ensure their symbolic recognition, to protect them against economic marginalization, and to ensure their effective role in government. How to pursue these objectives while also creating a common citizenship, social harmony and effective government is a central challenge in framing a constitution. This Working Paper discusses the nature of different minorities that may be politically important, and then considers different approaches to dealing with the constitutional recognition of minorities, the protection of their basic human rights and the entrenchment of specific minority rights, as well as the participation of minorities in government.
Acta Universitatis Sapientiae, European and Regional Studies
Minority rights instruments have been traditionally applied to old minority groups. This paper examines to what extent these same instruments are conceptually meaningful to the integration of new minorities stemming from migration. The conviction that minority groups, irrespective of their being old or new minorities, have some basic common claims that can be subsumed under a common definition does not mean that all minority groups have all the same rights and legitimate claims: some have only minimum rights, while others have or should be granted more substantial rights; some can legitimately put forward certain claims – not enforceable rights – that need to be negotiated with the majority, while others should not. In order to devise a common but differentiated set of rights and obligations for old and new minority groups, it is essential to analyse the differences and similarities of both categories of minorities, their claims, needs, and priorities; in this way, it will be possib...
3 Fear of Autonomy for Minorities 3.1 Autonomy for Minorities and the European Normative Framework
Article 4 paragraph 3 of the European Charter of Local Government, an international treaty signed in 1985 under the auspices of the Council of Europe, stipulating the principles governing such organs, states that 'public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen.' The Charter protects the independent jurisdiction, operational freedom and financial independence of local governments and their right of association in order to carry out tasks of common interest. And although it does not mention minority self-governments, where minorities constitute the local majority, its principles may also be considered normative in this aspect, since in their case, minority self-government is carried out through the implementation of general self-government rights. The document adopted on the Copenhagen meeting on the human dimension of the Conference (as of 1994: Organization) on Security and Cooperation in Europe in 1990 covered autonomy in connection with the participation rights of persons belonging to a minority in a rather subtle and ambiguous way. Chapter IV, Paragraph (35) of the document reads as follows: 'The participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities.' The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned. The text's main merit was its birth, i.e., the fact that it recognized autonomy as a means of preserving minority identity. Its adoption is owed to two factors. On the one hand, the. This chapter, Parts 2 and 3 in particular, contains not only the thoughts of the quoted authors and the essayist. It also reflects ideas raised at numerous domestic and international conferences and in discussions held with international lawyers, political scientists, sociologists and other experts specializing in minority issues, as well as with minority politicians.